Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

June 10, 2013

BOSTON’S FEDERAL MULTIPLE MURDER CASE MAY BE DELAYED AS THE BULGER TEAM OBJECTS TO LAST-MINUTE WITNESS EVIDENCE

Do not kid yourself. The case may be high profile, but these issues are hardly new. The only thing that might be regarded as novel is the variance from the normal rules by which the system treats the multiple murder case of United States vs James “Whitey” Bulger. This Long-time Boston criminal lawyer has been talking about this approach since Mr. Bulger was returned to the Commonwealth.

On Friday, you may have heard me interviewed about the latest occurrences in the Bulger case on WBZ (1030 AM radio). At the time, the defense had just brought a motion about an alleged shielding of government witness confessed hit man John Martorano in continuing criminal activities. at the time, it was not clear what that motion actually was.

It was, at its base, a discovery motion.

That might surprise you. A “discovery motion?”,you might ask. This case is on for trial. How can there still be discovery (lawyer-speak for information the two sides must provide one another so that each is prepared for trial) outstanding? Even I, who have tried more cases than my math abilities allow me to count, assumed the motion was a distraction. I also mentioned that in order to bring these allegations, the defense had to provide a good faith basis which might not be so easy to do.

I was wrong and the good faith basis is there.

According to the Bulger attorneys, State Police Detective Lieutenant Stephen P. Johnson has been Martorano’s “handler” since the confessed killer of 20 people agreed to cooperate against Bulger and corrupt FBI agents in return for a reduced sentence.. A very reduced sentence. Martorano was freed from prison in 2007, and the defense claimed that since then that another, unidentified trooper allegedly learned that Matorano was engaging in criminal activity since his release, tried to start a new investigation into him, but was blocked by Johnson.

At a hearing on the issue on Friday, Assistant US Attorney Fred Wyshak defended Johnson and declared that the trooper making the allegations went “off the deep end” and made allegations that federal and state investigators later determined baseless.

Of course, you might think that this would be an issue of fact and one that would be inappropriate and self-serving for the prosecutors to decide on their own.

But, then, I guess I digress.

For their part, Bulger’s lawyers called the trooper “highly regarded” and “seasoned” who has been villified by law enforcement to protect Matarono and the case against Bulger. They also quoted Dana Pullman, the president of the troopers’ union, the State Police Association of Massachusetts, as speaking in support of the unidentified trooper.

“These inflammatory comments were subsequently described by the president of the State Police Association of Massachusetts as a ‘large misstatement’ and a ‘mischaracterization,’ ” the Bulger lawyers wrote.

“This eleventh hour revelation creates an unfair prejudice to the defense. In consequence to the government’s conduct the defense moves that the Court complete jury empanelment and then stay opening statements in this case until the government has given the defense the requested materials and the defense has had the opportunity to review and then conduct its own investigation into these troubling allegations,” the Bulger lawyers wrote.

In a brief two-page response filled with disdain towards Bulger and the unidentified trooper, federal prosecutors urged US District Court Judge Denise J. Casper to reject the defense idea and continue with both jury selection and the opening statements.

“Consistent with his attempts to pretend he was immunized and to pretend he was not an informant, Bulger now pretends he has ‘discovered’ some shocking discovery violation,” Assistant US Attorney Brian T. Kelly wrote.

Attorney Sam’s Take on Playing Favorites With The Criminal Rules Of Procedure

You might be taken aback by the allegation on the part of the defense that this was an “eleventh hour” revelation. Could it be that the defense was simply not paying attention?

Well, I have some experience with Attorney Carney and some of his team; I doubt that very much.

In the past, we have discussed the federal court phenomenon called Jencks Material. It is the discovery that federal prosecutors, unbelievably enough, do not have to turn over to the defense until the eve of trial. Generally, this material is quite lengthy and often contains what might be the most important material in the entire discovery process. By the very nature of its timeline, there is seldom time to fully digest or investigate the material. Often, therefore, the judges are placed in the position in which Bulger’s judge finds herself. Does she delay the trial or provide a very serious appealable issue? For those of us who actually care, another way of saying the latter is “provide the defendant a fair trial”.

I cannot help but note some irony here. In a case in which the prosecutors and judges have repeatedly twisted and violated the usual rules, the rules regarding Jencks Material had to be followed.

Could it be that, at least for this case, the rules of procedure and fair play have become alittle one-sided?

“Well, who cares, Sam? I mean we all know he is guilty anyway. There is no way Bulger is going to get acquitted.”

Maybe. But then, if that is really the case, why bend over backwards to ensure he has such strong appealable issues? Do we really want to have any such convictions thrown out?

By publishing this information on this Web site, the Boston, Massachusetts law firm of Altman & Altman LLP is not claiming to represent any clients or cases mentioned here. The content provided is designed to inform readers and is not intended as legal advice.